March 13, 2006

Another "Quaint" Relic Down the Drain

We're somewhat clearer now on why the Bush administration speaks so disparagingly of efforts to treat terrorist acts as matters for the criminal law. Keep in mind that Zacarias Moussaoui is the sole individual charged in the U.S. for responsibility in connection with the 9/11 attacks.

ALEXANDRIA, Va. - An angry federal judge considered Monday whether to dismiss the government's death penalty case against confessed al-Qaida conspirator Zacarias Moussaoui after a federal attorney coached witnesses in violation of her rules.

"I do not want to act precipitously," U.S. District Judge Leonie Brinkema said in scheduling a special hearing on the case Tuesday, but she said that it was "very difficult for this case to go forward."

Brinkema said a lawyer for the Transportation Security Administration sent e-mail to seven Federal Aviation Administration officials outlining the prosecution's opening statements and providing commentary on government witnesses from the first day of testimony. That was in violation of her pretrial order barring witnesses from exposure to any opening statements or trial testimony.

"An attorney for the TSA ... egregiously breached that order," she told jurors before excusing them until Wednesday. Of the seven, three were to testify for the government and four were potential defense witnesses.

...

Brinkema wanted to hear Tuesday from the seven and from the attorney who contacted them to help her decide whether to throw out the government's case. If she does, Moussaoui would escape the possibility of execution and be sentenced to life in prison without chance of parole.

She said the rule against witnesses hearing testimony in advance is "a very important protection of the truth-seeking process."

...

The stunning development came at the opening of the fifth day of the trial after the government informed the judge and the defense over the weekend of the attorney's contact.

"This is the second significant error by the government affecting the constitutional rights of this defendant and more importantly the integrity of the criminal justice system of the United States in the context of a death case," Brinkema told lawyers outside the presence of the jury.

...

Brinkema said she would need time to study what to do.

"In all the years I've been on the bench, I have never seen such an egregious violation of a rule on witnesses," she said.

What was that phrase once so beloved by Republicans? Something about the "rule of law"?